[By Joseph Chirwa]
This article follows an intimate debate I had with fellow learned colleagues at the Bar on the place of lawyers in the politics of a country. From that debate there appears to be two schools of thought as regards the subject matter. The first is the school that appears to posit that lawyers must be “non-partisan” or “apolitical” but rather offer an independent view on matters surrounding politics of a country. The radical class of this school appears to suggest that lawyers must be “armchair” critics and advisers who must have nothing to do with the politics but rather concentrate on the law. The second school of thought is one, where I belong, that lawyers must be at the helm of politics because this is the very purpose of the calling. Lawyers must not only argue the law but also use their legal expertise to shape politics.
Zambia has had two lawyers who have served as Republican Presidents and at least three Vice-Presidents. The lawyers who have served as Republican Presidents are Levy Mwanawasa, SC and Edgar Chagwa Lungu and as Vice-Presidents include Mainza Chona; Levy Mwanawasa, SC and George Kunda, SC. Other than those to serve as President or Vice-President of the Republic, a number of lawyers have been actively involved in Zambian politics with many of them serving as leaders of political parties. These include Edward Jack Shamwana (late); Wynter Kabimba; Elias Chipimo Junior; Bishop Trevor Mwamba; and Fred M’membe, among others.
Why we need more lawyers in the Zambian parliament
It must be noted that Parliament is an institution that comprises the President and the National Assembly. In as far as I have no problem in the Presidency being held by any person from any respectable profession, I believe that a fair share of members of parliament in the National Assembly must be lawyers or indeed have basic legal training. History shows, for example, that since time immemorial lawyers have dominated Congress (Senate and House of Representatives in the US) and the House of Commons and Lords (UK). This is not coincidence or a statistical accident but rather projects that the work of Parliament (or however it is called in a particular country) is to make laws and the law making function requires that people with the legal competence and skills participate in the exercise. Some may argue that we have legislative experts in the Ministry of Justice as well as Parliamentary Counsel at the National Assembly, which I totally understand. The question that begs to be answered is whether these MPs must abdicate their law making functions to unelected technocrats. That answered, then from whence do we get the “intention of Parliament”? A careful look at the caliber of MPs, the quality of debates as well as legislation in the past National Assembly may help in driving home my argument.
Is law and politics separable?
Many authoritative legal minds have written about the relationship between law and politics. This relationship helps one to understand the role of law in politics and why politics is dependent on law. This same explanation will show one why legislatures world-over have been dominated by lawyers and those with training in law. Keith E. Whittington, A William Nelson Cromwell Professor of Politics at the Princeton University writes that “Law and politics are deeply intertwined. Law is an essential tool of government action, an instrument with which government tries to influence society. Law is also the means by which government itself is structured, regulated and controlled. It is no surprise, then, that law is an important prize in the political struggle and that law shapes how politics is conducted.” Undoubtedly, the law as an instrument of social change is an essential component of politics and political institutions. Without a shadow of doubt, the law and politics are inseparable and suggestions that the law can exist in the abstract without interaction with politics are misguided. That said, the objects of the Law Association of Zambia (LAZ) as espoused under section 4 of the enabling Act which is Chapter 31 of the Laws of Zambia are inherently political in nature. In order to achieve its objects, LAZ as a grouping of lawyers and individual lawyers will undeniably interact with politics.
Can a lawyer be tabula rasa?
Simply put, the concept of Tabula Rasa means a situation where there is absence of preconceived ideas or predetermined goals. To expect a lawyer who is not only educated but also learned to have a clean slate of issues surrounding him or her is unthinkable. A lawyer is a person with preferences, likes and dislikes. A lawyer exists not in a vacuum but in a community of persons with conflicting beliefs, ethos, ideas and values. A lawyer as a human being first of all is seen as a professional, has friends and foes; struggles that normal people face; and they are more inclined, as normal human beings, to adopt a way in which they can solve their individual and shared struggles such as cost of living, unemployment and the pursuit of happiness. Thus, a lawyer is automatically politically active as an ordinary individual before they are seen as lawyers. A lawyer is politically inclined in this regard. They may not be “actively” partisan for various reasons but they cannot be allowed to claim that they are “apolitical”. All human beings are politically inclined and have political preferences but they may not be actively partisan. They may not choose to do so due to various reasons such as job security or being a part of those careers where people are told to be non-partisan such as members of the bench; constitutional office holders; defence and national security; or public and civil servants.
Tabula Rasa and lawyers in practice
Sitting in a packed classroom of over 400 Bar students at the Zambia Institute of Advanced Legal Education (ZIALE) in 2016, I enjoyed lessons by Vincent Malambo, SC who taught Professional Conduct and Ethics. This was despite the fact that the classroom was hot and without air-conditioning, making me sweat like I am in a bakery and more so that donning of suits was compulsory even in the hottest month of October. The lesson on a particular day was on judicial recusal and declaration of conflict of interest by both lawyers and judges. The case in point involved US Chief Justice William Hubbs Rehnquist. The Justice was challenged over his decision to sit and hear a case in which the issues currently in dispute were those that occurred when he was the Attorney-General of the US hence he was politically conflicted. In the case of Laird v Tatum 408 U.S. 1 (1972), he defended his decision to participate in the adjudication of the matters at hand based on the fact that no lawyer or judge was tabula rasa hence they could not be expected not to be emotionally attached to matters at hand nor could they be expected not to know anything as what matters was the application of the law to the facts as they are presented.
End note: is it wrong for Zambian lawyers to argue on political lines?
Lawyers serve in what I say three capacities. The first they are legal practitioners: they are trained and specialised in law. The second is that they are counsel: they offer advice to clients. And third, they are advocates: they serve a client by advancing and advocating for that client’s case. The law is not a straight science. It is forged by argumentation. Applying facts to the law and using the law to advance one’s client’s interest. In the adversarial system like ours, we do not expect lawyers to speak one voice. The moment this is noticed or seen then it means something fundamentally wrong is happening. To those that expect ALL lawyers in Zambian to toll their line are greatly misinformed. Lawyers as politicians have political interests to serve first of all and above all to defend the Constitution of Zambia. It does not mean that when a lawyer disagrees with others on how the law is to be interpreted then they are wrong. The duty of deciding which lawyer is right and wrong rests with the courts of law. The lawyer’s duty is to argue and argue until the question is settled by the courts of law. Once settled, that decision binds ALL lawyers as precedent whether one agrees with it or not.
The author is Executive Director at the Institute of Law, Policy Research and Human Rights (a not-for-profit-think tank based in Lusaka). He is also the author of “A Student Companion on Legal Process in Zambia: Cases and Materials” (Juta, 2021).